S.C.R. KESHA V NILKANTH JOGLEKAR v. THE COMMISSIONER OF POLICE, GREATER BOMBAY (and connected petitions) [S. R. DAS C.J., VENKATARAMA AYYAR, B. P. SINHA, S. K. DAs and GovINDA MENON JJ.]
Preventive detention-Detention order by the Commissioner of Police-Duty to report forthwith to the State Government-" Forth- with", J1feaning of-Time tak-,n for sending report-Validity of de- tention-Preventive Detention Act, 1950 (IV of 1950), ss. 3(3), 7. Section 3(3) of the Preventive Detention Act, 1950, provides that when an order of detention is made by an officer mentioned in s. 3(2) he shall forthwith report the fact to the State Government together with the grounds on which the order has been made ….. . and no such order …… shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government.
On 13th January 1956 the Commissioner of Police, Bombay, passed orders under s. 3(2) of the Preventive Detention Act, 1950, directing the detention of the petitioners and in pursuance thereof they were arrested on 16th January 1956
The grounds on which the orders were made were furnished to the petitioners on 20th January 1956 and the next day the Commissioner reported the fa.ct of the order and the grounds therefor to the State Government, which approved of the same on 23rd January 1956. The pet.itioners contested the validity of the detention on the ground that when the Commissioner passed the orders for detention on 13th January 1956 it was his duty under s. 3(3) to report that fact forthwith to the State Government, and as he did not do so until 21st January 1956, he had acted in contravention of the statute and that the detention was therefore illegal. It was found that the delay in sending the report could not have been a.voided by the Commissioner and that it was due to causes to which the petitioners had very largely con- tributed.
Held, that the word "forthwith" in s. 3(3) of the Preventive Detention Act, 1950, has not a fixed and an absolute meaning and it must be construed with reference to the object of the section and the circumstances of the case. It cannot mean the same thing as "as soon as may be" in s. 7 of the Act and the former is more peremp- tory than the latter. The difference between the two expressions lies in this that while under s. 7 the time that is allowed to the authority to send the communication to the detenu is what is reasonably convenient, under s. 3(3) what is allowed is only the September 17
SUPREME COURT RE.PORTS [1956] period during which he could not, withoub any fault of his own, send the report. /(eshav Nilkanth J gl k An act which is to be done forthwith must be held to have
oear b d h""d "h een so one w en it is one wit all reasonable despatch and The Co;::,,is$iouer without avoidable delay. of Police, Greater The Queen v. The Justices of Bei·kshire ([1878-79] 4 Q.B.D. 469), Bombay
Hudson and others v. Hill and others ([1874] 43 L. J. C.P. 273), and R•g. v. Pri<M, (S-Moore P.O. 203), relied on. ORIGINAL JURISDICTION: Petitions Nos .. 102, 105 to llO of 1956.
Petitions under Article 32 of the Constitution for writs in the nature of Habeas Corpus. N. C. Chatterjee, Sadhan Chandra Gupta and Janardhan Sharma, for petitioners in Petitions Nos.
102, 105 to 108 of 1956. Sadhan Chandra Gupta and Janardhan Sharma, for petitioners in Petitions Nos. 109 and 1JOof1956. C. K. Daphtary, Solicitor-General for India, Porus A. Mehta and R. H. Dhebar, for respondents in Peti-
tions Nos. 102 and 105 of 1956. Porus A. Mehta and R. H. Dhebar, for respondents in Petitions Nos. 106 to llO of 1956. 1956. September 17. The Judgment of the Court was. delivered by
VENKATARAMA AYYAR J.-These are petitions filed under article 32 of the Constitution for the issue of writs in the nature of habeas corpus. They arise on the same facts and raise the ;same questions.
On 13-1-1956 the Commissioner of Police, Bombay, passed orders under section 3(2) of the Preventive Detention Act IV of 1950 (hereinafter referred to as the Act), directing the detention of the present peti-
tioners, and pursuant thereto, they were actually arrested on 16-1-1956. The grounds on which the orders were made were formulated on l~-l-1956, and communicated to the petitioners the next day. On
21-1-1956 the Commissioner reported the fact of the order and the grounds therefor to the State Govern- S.C.R. ment, which approved of the same on 23-1-1956. The contention of the petitioners before us is that
when the Uommissioner passed the orders for deten- tion on 13-1-1956, it was his duty under section 3(3} to report that fact forthwi·th to the State Govern- ment, and as he did not do so until 21-1-1956, he had
acted in contravention :of the statute, and that the detention was therefore illegal. That raises the ques- tion as to what "forthwith" in section 3(3) of the Act signifies, and whether on the facts· the report was
made "forthwith", within the meaning of that word in that sub-section. The word "forthwith", it has been observed, is of elastic import. In its literal sense, it might be con- strued as meaning that the act to be performed forth-
with in relation to another should follow it auto- matica.lly without any interval of time, or, as held in some of the American authorities, should be performed at one and the same time as the other.
But even in America, the preponderance of judicial opinion does not favour this construction. In Corpus Juris, Volume 26, page 998 the position is thus stated: •>Although the term has received a strict con-
struction, ordinarily it is not to be strictly construed, but should receive a liberal or reasonable construc- tion. Some regard must· be had to the nature of the act or thing to be performed and the circumstances
of the case". In England, there is a long catena of decisions in- terpreting the word "forthwith" occurring in statutes, rules and contracts, and their trend has been to con- strue it liberally. As early as 1767, discussing the
meaning of the word 'immediately'-and the word "forthwith'.' has been held to have the same signifi- cance-Lord Hardwicke observed in Rex v. Francis(1): "But then the word immediately, is strorrgly
insisted on, as a word which excludes all mesne acts and time; and therefore, that this taking away the money must necessarily be in the presence of Cox. (1) Cuu. 165; 94 E.R. 1129, 1133.
K eshav N ilka1t: h Joglekar v. The Commissiomr of Police, Greater Bombay Vmkatarama AyyarJ. [1956] But all the nine Judges held this word immediately, K<Sha• Nilkanth to be of so loose a signification, and not to imply Joglekar
necessarily, that the money was taken away in Cox's v. presence. For this word does neither in its use and The Commissioner application, nor in its grammatical construction, of Police, Greater exclude all mesne acts or time' …….. But it is more Bombay
necessary and proper in this case, to consider the Ve"katarama signification of this word in the legal way. And it is plain, that in this acceptation, it is not understood to exclude mesne acts or time …….. And on the Statute
Hue and Cry, 27 Eliz. c. 13, s. 11, where the words with as much convenient speed as may be, are made use of, all the precedents have expressed tliese words, by the word immediate, as may be seen in the books.
The last case which I shall mention on this point, is that of the writs of habeas corpus, issuing out of this Court, which are most frequently made returnable immediately; and in this case the word is never under-
stood either to exclude mesne acts or time, but only means, with convenient speed …….. ". Ayyar J. In Reg. v. The Justices of Worcester('), where the question was as to the meaning of the word "forth-
with" in section 50 of 6 Will. IV, Coleridge, J. ob- ~ served: "I agree that this word 'forthwith' is not to receive a strict construction like the word 'immedi- ately', so that whatever follows, must be done im-
mediately after that which has been done before. By referring to section 50, it seems that whatever is to be done under it, ought to be done without any un- reasonable delay. I think that the word 'forthwith'
there used, must be considered as having that mean- ing". The meaning of the word "immediately" came up for consideration in Thompson v. Gibson(2). Holding that it was not to be construed literally, Lord Abinger
C. B. observed: "If they" (acts of Parliament) "could be con- strued literally, consistently with common sense and justice, undoubtedly they ought; and if I could see, 11) [1889) 7 Dow!. Pr. Cas. 789-791: 54 R.R. 902 (903).
(2) [1841] 8 '!. & W. 282: 151 E.R. 1045, 1047. S.C.R. upon this act of Parliament, that it was the intention of the legislature that not a single moment's interval I<eshav Nilka"tl' should take place before the granting of the certificate,
Joglekar I should think myself bound to defer to that declared v. intention. But it is admitted that this cannot be its Tha Con1missionar interpretation; we are therefore to see hQw, con-
0/ Police, Greater sistently with common sense and the prineiples of Bot11ba:v justice, the words 'immediately afterwa1ds' are to be Vmlwtara:na construed. If they do not mean that it is to be done
Ayyar J. the very instant afterwards, do they mean within ten minutes, or a quarter of an hour, afterwards? I think we should interpret them to mean, within such reason- able time as will exclude the danger of intervening
facts operating upon the mind of the Judge, so as to disturb the impression made upon it by the evidence in the cause". In agreeing with this opinion, Alderson, B. expressly approved of the decision of Lord Hardwicke in Rex.v.
Francis(1). This construction of the word 'immedi- ately' was adopted in Page v. Pearce(2), Lord Abinger C. B. observing: "It has already been decided, and necessarily so, that the words 'immediately afterwards' in the statute,
cannot be construed literally; and if you abandon the literal construction of the words, what can you sub- stitute but 'within a reasonable time?' …. " In The Queen v. The Justices of Berkshire(3), where
the point was as to the meaning of "forthwith" in section 52 of 35 & 36 Viet., Chapter 94, Cockburn C. J. observed: "The question is substantially one of fact. It is impossible to lay down any hard and fast rule as to
what is the meaning of the word 'immediately', in all cases. The words 'forthwith' and 'immediately' have the same meaning. They are stronger than the ex- pression 'within a reasonable time', and imply prompt,
vigorous action, without any delay, and whether there h!'.'.s been such action is a question of fact, hav- ing regard to the circumstances of the particular case". (l} Cun. 165: 94 E.R. 1129, 1183.
(2) [1841] 8 M. & W. 677 (678): 151 E.R. 1~11 (1212). (S) [1878-79] 4 Q.B.D. 469 (471). [1956) The same construction has been put on the word "forthwith" occurring in contracts. In Hudson and
J(1Js!iav Nilkanth Jogfokar others v. Hill and others(') which was a case of charter- v. party, it was observed at page 280: Th• Com"'i"ioner '"Forthwith' me·ans without unreasonable delay.
of Police, Greater The difference between undertaking to do something Bomb~y 'forthwith' and within a specified time is familiar to Vmkatara"'a , everyone conversant with law. To do a thing 'forth- Ayyar J.
with' is to do it as soon as is reasonably convenient". In Reg. v. Price("), it was held by the Privy Council that the word "forthwith" in a bail bond meant within a reasonable time from the service of notice.
On these authorities, it may be taken, an act· which is to be done forthwith must be held to have been so done, when it is done with all reasonable despatch and without avoidable delay.
But it is argued by Mr. N. C. Chatterjee that the view taken in the above decisions as to the meaning of the word "forthwith" has been abandoned in the later decisions, and that under the law as it stands,
when an act has to be performed forthwith in rela- tion to another, what has to be decided is not whe- ther it was done within a reasonable llime, but whe- ther it was done so closely upon the other as to form
together one continuous act. He relied in support of this opinion on the decision in Re Muscovitch("), affirming that in Re Muscovitch('). That was a deci- sion on rule 132 of the Bankruptcy Rules, which pro-
vided that "Upon entering an appeal, a copy of the -, notice of appeal shall forthwith be sent by the appel- lant to the registrar of the court appealed from". The facts were that the appeal was lodged in time on
25-10-1938 but the notice was served on 28-10-1938, and it was found that there was "no satisfactory rea- son or no reason at all, why there was any delay in the matter" (Re Muscovitch(')). On that, it was held
that the requisition that "the notice shall forthwith be sent" was not satisfied. This is authority only for the position that when an act is done after an interval of time and there is no explanation forthcoming for
(1) [1874] 48 L.J. C.P. 278 (280). (2) 8 Moore P.O. 203: 14 E.R. 78, {3\ [1939] 1 A.E.R. 135. (4) [1988] 4 A.E.R. 570. S.C.R. the delay, it cannot be held to have been done "forth-
with". That is made clear by Sir Wilfrid Greene 1\1. R. in the following passage in Re Muscovitch(1) at page 139: "Having regard to the construction which was put upon the word 'forthwith' which is peremptory,
and admits of no interval of time between the entry of the appeal and the sending of the notice save such as may be imposed by circumstances which cannot be avoided, I find it impossible in the present case to say
that the notice was sent forthwith within the mean- ing of the rule". Reliance is also placed for the petitioners on the deci- sion in Ex parte Lamb: In re Southam(9), which was follow~ in Re Muscovitch(1).
There, construing the word "forthwith" in rule 144 of the Bankruptcy Rules, 1870, which corresponds to rule 132, which was the subject of interpretation in Re Muscovitch(1), Jessel
M. R. observed at page 173: "I think that the word 'forthwith' must be con- strued according to the circumstances in which it is used. Where, as in Hyde v. Watts( 8), there is a cove-
nant to insure a man's life, there must of necessity be some delay, for the act could not be done in a moment. But where an act which is required to be done 'forthwith' can be done without delay, it ought
to be so done". In that case also, the learned Judges found that the delay was not explained. And the observation of Lush L. J. in the same case was that "the word 'forthwith' has not a fixed and an absolute meaning; it must
be construed with reference to the objects of the rule and the circumstances of the case". There is nothing in the decisions in Re Muscovitch(1) and Ex parte Lamb: In re 8outham(2) which can be considered
as marking a departure from the construction put on the word "forthwith" in the earlier authorities that it meant only that the act should be performed with reasonable speed and expedition, and that any delay
in the matter should be satisfactorily explained. (1) [193~] 1 A.E.R. 18~ (2) [1881-B2J 19 Ch. ·D. 169. (3) 12 llI & w. 254. Keshav Nillwnth Joglckar v. The Commissiomr of PoUct, Greater
Bombay Venkatarama AyyarJ. Keshav N ilkanth Joglekar v. The Commissioner of Police, Greater B::,,nbay V<!nkatarama AyyarJ. [1956) It is argued for the petitioners that even if the con-
struction put on the word "forthwith" in the above decisions is accepted as correct, it must, in any event, yield to any contrary intention expressed in the statute, and that the provisions of the Act
afforded clear indication of· such an intention. It is contended that the :egislature while providing in section 7 that the grpunds should be communicated to the detenu "as sobn as may be" has enacted that
the report under section 3(3) should be sent "forth- with", that the use of two different expressions in the two sections is a clear indication that they do not mean the same thing, that as the words "as soon as
may be" import that the act might be performed in a reasonable time, the word "forthwith" which is more peremptory must be construed as excluding it. The decisions in Emperor v. Phuchai(') and in K. U.
Kulkarni v. Ganpat Teli(') were quoted in support of the position that when two different expressions are used in different parts of the same clause or sec- tion, they should be construed as used in different
senses. We agree that "forthwith" in section 3(3) cannot mean the same thing as "as soon as may be" in sec- tion 7, and that the former is more peremptory than the latter. The diffrrence between the two expres-
sions lies, in our opinion, in this that while under sec- tion 7 the time that is allowed to the authority to send the communication to the detenu is wbat is rea- sonabl.v convenient, under section 3(3) what is
allowed is only the period during which he could not, without any fault of his own, send the report. Under section 7 the question is whether the time taken for communicating the grounds is reasonably requisite.
Under section 3(3) it is whether the report has been sent at the earliest point of time possible, and when· there is an interval of time between the date of the order and the date of the report, what has to be con-
sidered is whether the delay in sending the report could have been avoided. (1) I.L.R. 50 All. 909: A.I.R. 1929 All. SS. (2) I.L.R. [1942] Bom. 287: A.I~· 1912 Bom 191. S.C.R. It was contended that as section 7 required that
the communication should be made not later than 5 Keshav Nilkauth days from the date of the order, and as section 3(3) Joglekar was more peremptory than section 7 in that it re- v.
quired that the report should be made forthwith, the The Co~missio11cr period allowable under section 3(3) could not exceed 01 Police, Greater 5 days, and that as in these cases the reports were
Bombay sent 8 days later, they could not be held to have been Venkatarama sent forthwith. This argument mixes up two different Ayyar J. matters C?ntained in section 7. The period of 5 days
provided therein is an absolute one and is indepen- dent of the period which is permissible under the ex- pression "as soon as may be'', which must, by its very nature, be indefinite depending on the facts and
circumstances of the case. It will be as erroneous to read 5 days lnto the period allowable under the ex- pression "as soon as may be" as to read the 12 days within which the State has to approve the order under
section 3(3) into the period which is allowable under the expression "forthwith". The result then is that the report sent by the Commissioner to the State on 21-1-1956 could be held to have been sent "forthwith"
as required by section 3(3), only if the authority could satisfy us that, in spite of all diligence, it was not in a position to send the report during the period from 13th to 21st January 1956.
We must now examine the facts from t.he above standpoint. The Commissioner of Police has filed an affidavit explaining why the reports were not sent till 21st January 1956, though the orders themselves had
been made as early as 13th January 1956. Ever since the publication of the proposal to form a State of Maharashtra without the city of Bombay, there had been considerable agitation for the establish-
ment 0f a Samyuktha Maharashtra with the city of Bombay included in it. An action committee had been set up on 15-11-1955 for the purpose, and there had been hartal and morchas resulting in outbursts of
lawlessness and violence and in the burning of a police chowki. The final decision on the question was ex- pected to be taken and announced in the middle of January 1956, and the atmosphere was highly sur-
charged. It was in this situation that the Commis- Kcshav Nilkanth Joglekar v. Tlte Co1nmissioner of Police, Greater Bombay Venkatarama Ayyar J. (1956) sioner decided to take action under section 3(2) of
the Act against the leading spirits of the movement, and passed the present orders for detention against the petitioners on 13-1-1956. In his affidavit, the Commissioner states that he decided first "to locate
the persons against whom orders of detention were made by me on the 13th January 1956 and after having done so, to arrest all of them simultaneously so that none of them may go underground or abscond
or evade execution of the detention orders". Then the affidavit goes on to state: "It was not possible for me to send the report earlier as the situation in the City of Greater Bom-
bay was tense, pregnant with danger on the 13th January 1956, and continued to be so till 16th Janu- ary 1956, and actual rioting occurred during that night and those riots continued till 22nd January
1956. I and my staff were kept extremely busy all thoroughout in maintaining law and order and simultaneously taking steps to round up miscreants. In this unusual and tense situation, it was not pos-
sible to make a report earlier than the day on which it was made''. We see no reason for not accepting these state- ments. What happened on the 16th and the follow- ing days are now matters of history.
The great city of Bombay was convulsed in disorders, which are among the worst that this country has witnessed. The Bombay police had a most difficult task to per- form in securing ijfe and property, and the auth-
orities must have been working at high pressure in maintaining law and order. It is obvious that the Commissioner was not sleeping over the orders which he had passed or lounging supinely over them.
The delay such as it is, is due to causes not of his making, but to causes to which the activities of the petitioners very largely contributed. We have no hesitation in accepting the affidavit, and we hold
that the delay in sending the report could not have been avoided by the Commissioner and that when they were sent by him, they were sent "forthwith" within the meaning of section 3(3) of the Act.
S.C.R. Mr. S. C. Gupta put forward some special conten- tions on behalf of the petitioners in C.M.Ps. Nos. 109 Kesliav Nilkantli and 110 of 1956. He contended that as the order Jogiekar
originally made against the petitioner in C.M.P. No. v. 109 of 1956 was that he should be detained in Arthur Tiie Co111missio1ur Road Prison, Bombay' the subsequent order of the of Police, Greater Commissioner by which he was detained in Nasik
Bombay Prison was without jurisdiction. It is clear from the Venkatarania affidavit of the Commissioner that the petitioner was Ayyar J. not ordered to be detained in Arthur Road. Prison
but in Nasik Road Central Prison, and that he was kept temporarily in Arthur Road Prison, pending arrangements to transport him to Nasik. It was next contended that the materials on which the orders of
detention were made and set out in the communica- tions addressed to the petitioners all related to their past activities, and that they could not constitute grounds for detention in f1tturo.
This contention is clearly unsound. What a person ·is likely to do in futurecanonly be a matter of inference from various circumstances, and his past record will be valuable, and often the only, record on which it ·ould be made.
It was finally contended that what was allege – against the petitioners was only that they advocated hartal., and that that was not a ground for making an order of detention. But the charge in these cases
was that the petitioners instigated hartal bringing about a complete stoppage of work, business and transport with a view to promote lawlessness and disorder, and that is a ground on which an order could
be made under section 3(2). All the contentions urged by the petitioners there- fore fail, and these petitions must be dismissed.